Jammu & Kashmir High Court - Srinagar Bench
Suhail Ahmad Sheikh vs State Of J&K; And Others on 30 May, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
HCP No.63/2017 Date of order: 30 /05/2017 Suhail Ahmad Sheikh Versus State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For the petitioner(s): Mr Mian Tufail, Advocate For the respondent(s): Mr Asif Maqbool, GA Whether to be reported in Digest/Journal? Yes/No
1. Impugned in this petition is Order No.254/DMB/PSA/2017 dated 6th February 2016, of District Magistrate, Baramulla -
respondent No.2 herein, whereby one Suhail Ahmad Sheikh @ Suhail Dakoo son of Nazir Ahmad Sheikh resident of Tawheedgunj District Baramulla (for brevity "detenu") has been placed under preventive detention to prevent detenu from acting in any manner prejudicial to the maintenance of security of the State.
2. The case set up in the petition is that respondent No.2, while slapping preventive detention on detenu, has not adhered to Constitutional and Statutory safeguards available to detenu under the Constitution of India and J&K Public Safety Act, 1978.
3. I have heard learned counsel for parties. I have gone through the pleadings as also record made available by learned counsel for respondents. I have considered the matter
4. Right of personal liberty is most precious right guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC 597), is to be just and fair. The HCP no.63/2017 Page 1 of 7 2 personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law.
5. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Hardhan Saha v. State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by HCP no.63/2017 Page 2 of 7 3 a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent.
6. It is long back that an eminent thinker and author, Sophocles, had to say: "Law can never be enforced unless fear supports them." This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in today's society. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board HCP no.63/2017 Page 3 of 7 4 disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.
7. Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee safeguard to detenu to be informed, as soon as may be, of grounds on which order of detention is made, which led to the subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenu is to be furnished with sufficient particulars to enable him to make a representation, which on being considered, may obtain relief to him. Detention record, made available by learned counsel for respondents, reveals that detention order was made on proper application of mind, to the facts of the case and detenu was delivered at the time of execution of detention order, the material and grounds of detention and also informed that he had a right to represent against his preventive detention. From the perusal of the detention record it transpires that the detenu, at the time of execution of detention order, has been handed over copy of detention order, grounds of detention and other material that finds mention in detention order, so as to enable him to make a representation against his detention. The detenu has been also informed that he can file a representation against his detention. The grounds of detention are definite, proximate and free from any ambiguity. The detenu has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made the authority to exercise its powers under section 8, J&K Public Safety Act 1978 and record subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him HCP no.63/2017 Page 4 of 7 5 from acting in any manner prejudicial to the security of the State.
8. Detaining authority, in present case, has informed detenu that detenu joined terrorist organization and indulged in illegal activities to carry out nefarious designs of terrorists. Grounds of detention also mention that on 31st December 2016, on a specific information a search operation/Naka was laid by District Police Baramulla at Janbazpora Baramulla, to the effect that the presence of militants of JeM outfit had been noticed in Old Town Baramulla and in the meantime two persons were noticed by Naka, checking party in suspicious conditions, who were coming from Janbazpora link road to Old Town Baramulla. On seeing police/security forces, they tried to escape from the spot for evading their arrest, but they were apprehended tactfully by the Naka checking party and on questioning, they were identified as Wasim Mehraj Farash S/o Mehraj-uddin Farah R/o Khanpora and Suhail Nazir Sheikh S/o Nazir Ahmad Sheikh R/o Tawheedgunj, Baramulla, affiliated with JeM outfit and one AK-56 Rifle, one AK-56 magazine and 60 rounds of AK-56 Rift were recovered from possession of detenu's associate and one Chinese Pistol, one Pistol Magazine and five rounds of Pistol were recovered from his possession. In this regard a case FIR no.391/2016 under Section 7/25 Arms Act, was registered in Police Station Baramulla. This act is sufficient to prevent detenu from indulging in such prejudicial activities that has direct bearing on our society. So viewed, detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while detention order in question was slapped on him and thereafter executed.
9. Counsel for petitioner has stated, during course of argumentation, that the allegations/grounds of detention are vague and the instances and cases mentioned in grounds of detention have no nexus with detenu and have been fabricated by police in order to justify its illegal action of detaining detenu.
HCP no.63/2017 Page 5 of 7 6Counsel for petitioner also avers that detaining authority has mentioned a single FIR in the grounds of detention for slapping preventive detention upon detenu. It may not be out of place to mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person.
10. In Debu Mahato v. State of W.B. (1974) 4 SCC 135, it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case "one act may suffice". That was a case of wagon-breaking and given the nature of the Act, it was held therein that "one act is sufficient". The same principle was reiterated in Anil Dely v. State of W.B. (1974) 4 SCC 514. It was a case of theft of railway signal material. Here too "one act was held to be sufficient". Similarly, in Israil SK v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this:
"Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity." The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where the person tried to export huge HCP no.63/2017 Page 6 of 7 7 amount of Indian currency to a foreign country in a planned and premeditated manner, as in the present case detenu has been apprehended with arms and ammunition, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.
11. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. Recently, same views and principles have been reiterated by the Supreme Court in Gautam Jain vs Union of India anr reported in AIR 2017 SC 230.
12. For the reasons discussed, the petition fails and is, accordingly, dismissed.
13. Detention record be returned to the counsel for respondents.
( Tashi Rabstan ) Judge Srinagar 30th May 2017 Ajaz Ahmad HCP no.63/2017 Page 7 of 7